| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA136/2017 [2018] NZCA 494 |
| BETWEEN | EDEL METALS GROUP LIMITED |
| AND | GEIER LIMITED |
| CA490/2017 | ||
| BETWEEN | MICHAEL JOHN JACOMB, TRENA KATHLEEN JACOMB AND PETER REGINALD RICHARDSON AS TRUSTEES OF THE GENSET TRUST | |
| AND | EDEL METALS GROUP LIMITED | |
| Hearing: | 17 April 2018 |
Court: | Cooper, Dobson and Toogood JJ |
Counsel: | D H McLellan QC and J C Adams for Appellants in CA136/2017 and First and Third Respondents in CA490/2017 |
Judgment: | 12 November 2018 at 3.30 pm |
JUDGMENT OF THE COURT
AThe appeal in CA136/2017 is allowed. The High Court is to determine afresh the quantum of the reasonable costs payable to the second respondents on an indemnity basis.
BThe second respondents must pay the appellants costs for a standard appeal on a band A basis and usual disbursements in respect of the appeal in CA136/2017. We certify for two counsel. Costs in the High Court are to be determined in that Court.
CThe appeal in CA490/2017 is allowed in part. The High Court is to determine what is a reasonable amount for the third respondent to pay as indemnity costs in respect of the application for security for costs made by the appellants against the first respondent. The appeal is otherwise dismissed.
DWe make no order for costs in respect of the appeal in CA490/2017. Costs in the High Court are to be determined in that Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Table of Contents
Para No
Introduction [1]
Appeal CA136/2017 [7]
Background [9]
The argument on appeal [30]
Indemnity costs [31]
Costs against a non-party [50]
Quantum [54]
Appeal CA490/2017 [68]
Result [73]
Introduction
These two appeals arise out of judgments delivered by Fogarty J on 22 February and 4 August 2017.[1]
[1]Edel Metals Group Ltd v Geier Ltd [2017] NZHC 225 (first High Court judgment); and Edel Metals Group Ltd v Geier Ltd [2017] NZHC 1833 (second High Court judgment).
The judgments were delivered after the appellants in CA490/2017 (the Genset Trustees, who were the defendants in the High Court) had applied to strike out the statement of claim filed against them and had also sought increased or indemnity costs against the appellants in CA136/2017. The first appellant in CA136/2017, Edel Metals Group Ltd (EMG), was the plaintiff in the High Court. John Andrew Sorensen was its sole director and not named as a plaintiff in the proceeding.
EMG did not oppose the application for strike-out, nor did it oppose an order that it pay costs on a category…
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- Case
- [2018] NZCA 494
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